Just how badly did a federal appellate court trash extended leave as a reasonable accommodation?

I’m feeling rather charitable this evening as I punch out this post. Maybe it’s the proud feeling of crossing off my bucket list taking my four-year-old son to a Sunday early-bird at the biggest dive bar in South Jersey. (*Bonus points if you can guess the bar).

But anyway, get a load of this opinion from the Tenth Circuit Court of Appeals. If you’re representing an employer and happen to be teeing up a dispositive motion where the issue is whether six months of leave is a reasonable accommodation, then look no further.

Generally, six months of leave is not a reasonable accommodation.

Here are the basic facts:

Plaintiff-employee has cancer (disability) and defendant-employer has a six-month leave policy. Employee takes six months of leave, after which, she requests an additional semester of leave, promising to return in the Summer. Employer says no and offers employee long-term disability (essentially firing her). Employee sues under the Rehabilitation Act (the equivalent of the Americans with Disabilities Act), alleging that her employer should have accommodated her with the additional leave.

Employer wins. (Although, you probably figured that out already).

But, not only did the employer win, it was on a motion to dismiss, rather than a motion for summary judgment. So, you know the lower court and the affirming appellate court came out guns blazing.

Quotables from the the 10th Circuit’s blistering opinion.

So, get ready management-side lawyers, here come the money quotes from the opinion. And since I’m not sure whether Westlaw has published it yet, if you’re reading this post, you’d better cite it in your brief.

“Must an employer allow employees more than six months’ sick leave or face liability under the Rehabilitation Act? Unsurprisingly, the answer is almost always no.”

“It perhaps goes without saying that an employee who isn’t capable of working for [six months] isn’t an employee capable of performing a job’s essential functions — and that requiring an employer to keep a job open for so long doesn’t qualify as a reasonable accommodation.”

“[R]easonable accommodations — typically things like adding ramps or allowing more flexible working hours — are all about enabling employees to work, not to not work.”

“[I]t’s difficult to conceive how an employee’s absence for six months — an absence in which she could not work from home, part-time, or in any way in any place — could be consistent with discharging the essential functions of most any job in the national economy today.”

“[I]t is difficult to conceive when requiring [six months of leave] from an employer might qualify as a reasonable accommodation.”

“The Rehabilitation Act seeks to prevent employers from callously denying reasonable accommodations that permit otherwise qualified disabled persons to work — not to turn employers into safety net providers for those who cannot work.”

“In the first place, the EEOC manual commands our deference only to the extent its reasoning actually proves persuasive….And the sentence Ms. Hwang cites doesn’t seek to persuade us of much. It indicates that an employer ‘must’ modify a leave policy if the employee ‘needs’ a modification to ensure a ‘reasonable accommodation'”

“[T]he EEOC seems to agree with our conclusion that holding onto a non-performing employee for six months just isn’t something the Rehabilitation Act ordinarily compels.”

“[A]n inflexible leave policy can serve to protect rather than threaten the rights of the disabled — by ensuring disabled employees’ leave requests aren’t secretly singled out for discriminatory treatment, as can happen in a leave system with fewer rules, more discretion, and less transparency.”

“[T]he leave policy here granted all employees a full six months’ sick leave — more than sufficient to comply with the Act in nearly any case.”

Dayyyyyyyyum!

But before you dust off those no-fault policies…

The Tenth Circuit did not go so far as to say that leave of any length is no longer a reasonable accommodation. Indeed, other parts of this opinion (and common sense) should have you re-thinking that:

“[A]n employee who needs a brief absence from work for medical care can often still discharge the essential functions of her job. Likewise, allowing such a brief absence may sometimes amount to a (legally required) reasonable accommodation so the employee can proceed to discharge her essential job duties. After all, few jobs require an employee to be on watch 24 hours a day, 7 days a week without the occasional sick day.”

Also, the court pointed out that “no-fault” leave policies with very short leave periods may not comport with the ADA. Similarly, a sham policy would fail too.

But the big takeaway here is that we have another court holding that six months of leave is generally not a reasonable accommodation.

CONTRIBUTOR:

Eric B. Meyer

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? If you want a nerdy employment-lawyer brain to help you solve HR-compliance issues proactively before the action sequence, as a Principal Partner of a national law firm, FisherBroyles, LLP, I’m here to help. I'm not only an EEOC-approved trainer, I offer day-to-day employment counseling, workplace audits and investigations, and other prophylactic measures to keep your workplace working while you focus on running your business. And for those employers in the midst of conflict, I bring all of my know-how to bear as your zealous advocate. I’m a trial-tested, experienced litigator that has represented companies of all sizes in a veritable alphabet soup of employment law claims, such as the ADA, ADEA, CEPA, FMLA, FLSA, NJLAD, PHRA, Title VII, and USERRA. I also help clients litigate disputes involving restrictive covenants such as non-competition and non-solicitation agreements, as well as conflicts over use of trade secrets and other confidential information. For more about me, my practice, and my firm, click on my full bio.